JOINT PARTLY DISSENTING OPINION OF JUDGE S SPIELMANN AND MALINVERNI

1. We voted against points 2 and 5 of the operative part because in our view Article 13 of the Convention has been violated.

2. We would like to observe from the outset that it is for the States, through their national courts in the first place, to address violations of Convention rights at the domestic level according to the criteria adopted by the Court. This principle – the principle of subsidiarity – was recently reaffirmed at the Interlaken conference. Indeed, the Interlaken Declaration of 19 February 2010 reiterated “ the obligation of the States Parties to ensure that the rights and freedoms set forth in the Convention are fully secured at the national level ”, called for “a strengthening of the principle of subsidiarity” and stressed that “ this principle implies a shared responsibility between the States Parties and the Court ” (point 2 of the preamble to the Declaration). Moreover, it recalled that “ it is first and foremost the responsibility of the States Parties to guarantee the application and implementation of the Convention ” , and consequently called upon the States Parties “ to commit themselves to [inter alia] ensuring ... that any person with an arguable claim that their rights and freedoms as set forth in the Convention have been violated has available to them an effective remedy before a national authority providing adequate redress where appropriate” (point B. 4. (d) of the Declaration).

3. In our view, the Court should develop its interpretation of Article 13 by requiring that an effective remedy include an examination based on criteria set out by the Court and on its case-law, thereby “forcing” member States to ensure that the Convention is effectively incorporated in the domestic court ' s application of the law.

4. Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The Court has already noted that the scope of the obligation under Article 13 varies depending on the nature of the applicant ' s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Aksoy v. Turkey , 18 December 1996, § 95 , Reports of Judgments and Decisions 1996-VI , and MenteÅŸ and Others v. Turkey , 28 November 1997, § 89 , Reports 1997 ‑ VIII ). We further consider that, where an arguable breach of one or more of the rights under the Convention is in issue, there should be available to the victim a mechanism for establishing any liability of State officials or bodies for that breach (see T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 107 , ECHR 2001 ‑ V (extracts) ). Furthermore, in the case of a breach of Articles 2 and 3 of the Convention, compensation for the pecuniary and non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 109 , ECHR 2001 ‑ V ).

5. Turning to the circumstances of the present case we observe, and it was not in dispute between the parties, that the applicant sustained serious injuries resulting from police officer N. ' s conduct. The effective investigation into the applicant ' s ill-treatment complaints alone could not redress the physical and psychological damage flowing from the direct and deliberate invasion of the applicant ' s bodily integrity and therefore represented only one part of the measures necessary to provide redress for the ill-treatment by the State agent (see Vladimir Romanov v. Russia , no. 41461/02, § 79 , 24 July 2008 ). The applicant submitted that he had attempted to obtain redress for the ill-treatment suffered by bringing two tort actions. However, he argued that the remedy was not sufficiently effective to comply with Article 13 of the Convention, as it did not provide adequate redress. It is apparent from the above that the Court must examine whether the judicial avenue for obtaining compensation for the damage sustained by the applicant represented an effective, adequate and accessible remedy capable of satisfying the requirements of Article 13 .

6. The applicant introduced an action in the course of the criminal proceedings against police officer N., seeking compensation for damage resulting from the latter ' s unlawful conduct. The domestic courts partly allowed the action, awarding the applicant RUB 10,000 (approximately EUR 340) in compensation for non-pecuniary damage, and instructed him to bring a separate action for compensation in respect of the injuries suffered to his person (see paragraph 19 of the judgment). The award was never enforced as Mr N. did not have the requisite funds. Subsequently, the applicant brought an action against a number of State agencies, including the Yemelyanovskiy district police department which had employed officer N., arguing that the amount of compensation awarded was inadequate and had not in fact been paid to him. He further argued that the courts should hold the State accountable and punish it for the outrageous conduct of its agent, in order to act as a deterrent to future offences, and should thus award him sufficient compensation for the injuries suffered. On 3 April 2003 the Sverdlovskiy District Court dismissed the action, holding that the situation in which the applicant had found himself was not covered by the legal provisions abrogating the State ' s immunity from tort liability and establishing the conditions for suits and claims against the State for damage caused by unlawful acts or omissions of its agencies and officials. In addition, the District Court found that the applicant had already made use of his right to obtain redress by successfully introducing the tort action against the direct tortfeasor, Mr N. (see paragraph 24 of the judgment). On 16 July 2003 the Krasnodar Regional Court , having examined the applicant ' s appeal, confirmed the overall correctness of the District Court ' s decision to dismiss the action. However, the Regional Court amended the District Court ' s reasoning by setting aside its conclusion as to the inapplicability of the legal provisions concerning the State ' s liability, while endorsing the finding that the applicant had already benefited from the right to claim reparation of the damage from the perpetrator of the injury (see paragraph 25 of the judgment).

7. Russian law undoubtedly afforded the applicant the possibility of bringing judicial proceedings to claim compensation for the damage suffered as a result of his ill-treatment. The applicant availed himself of that possibility by lodging an action against the direct tortfeasor (see paragraph 19 of the judgment) and subsequently by bringing a claim against various State agencies seeking compensation for the damage he had sustained on account of the ill-treatment (see paragraph 23 of the judgment). It follows that in the present case it is absolutely necessary to verify whether the way in which the domestic law was interpreted and applied by the domestic courts in the process of implementation of the compensatory remedy produced consequences that are consistent with the Convention principles, as interpreted in the light of the Court ' s case-law (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 187-191, ECHR 2006 ‑ V ).

8. We would like to reiterate the applicant ' s argument that he lodged the second action because he considered that the amount of compensation to be paid by Mr N. was insufficient, unreasonable and, in any event, unenforceable (see paragraph 22 of the judgment). In this connection we note that the “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see ÄŒonka v. Belgium , no. 51564/99, § 75 , ECHR 2002 ‑ I ). At the same time, the Convention must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory (see, among other authorities, Artico v. Italy , 13 May 1980, § 33 , Series A no. 37 ; Soering v. the United Kingdom , 7 July 1989, § 87 , Series A no. 161 ; and Cruz Varas and Others v. Sweden , 20 March 1991, § 99, Series A no. 201) . That also applies to the right enshrined in Article 13 of the Convention. The Court has already held on a number of occasions that the notion of an effective remedy under Article 13 requires that the remedy should be capable of resulting in an award of fair and reasonable damages proportionate to the loss suffered (see Vdovina v. Russia , no. 13458/07, § 29 , 18 June 2009 ; Wasserman v. Russia (no. 2) , no. 21071/05, § 49 , 10 April 2008 ; and, mutatis mutandis, Cocchiarella v. Italy [GC], no. 64886/01, § 93 , ECHR 2006 ‑ V , with further references ).

9. T he question whether the applicant received reparation for the damage caused is therefore one of the issues to be considered. We are mindful of the fact that the task of estimating damages to be awarded is a difficult one. It is especially difficult in a case where personal suffering, whether physical or mental, is the subject of the claim. There is no standard by which pain and suffering, physical discomfort and mental distress and anguish can be measured in terms of money. However, we cannot overlook the fact that the amount of RUB 10,000 awarded in the circumstances of the case appears to be disproportionately low, particularly if compared to what the Court generally awards in similar Russian cases (see, for example, Barabanshchikov v. Russia , no. 36220/02, § 70 , 8 January 2009 , and Nadrosov v. Russia , no. 9297/02, § 54 , 31 July 2008 ). [1]

10. In this connection we reiterate that, while emphasising the importance of a reasonable amount of just satisfaction being offered by the domestic system for the remedy in question to be considered effective under the Convention, the Court has held on a number of occasions that a wider margin of appreciation is left to the domestic courts in assessing the amount of compensation to be paid in a manner consistent with its own legal system and traditions and consonant with the standard of living in the country concerned, even if that results in awards of amounts that are lower than those fixed by the Court in similar cases (see Cocchiarella, cited above, § 80). The Court has also accepted that, in some cases, the alleged violation of the Convention right may result in minimal non-pecuniary damage or no non-pecuniary damage at all. However, in such cases the domestic courts will have to justify their decision by giving sufficient reasons (see Scordino, cited above, §§ 203-204). One of the purposes of a reasoned decision is to demonstrate to the parties that their claims have been given due consideration (see, mutatis mutandis, Suominen v. Finland , no. 37801/97, § 37, 1 July 2003). The importance of Article 13 for preserving the subsidiary nature of the Convention system must be stressed in that individuals ' complaints must be adequately addressed in the first place within the national legal system (see Čonka, cited above, § 84, and Kudła v. Poland [GC], no. 30210/96, § 155, ECHR 2000 XI).

11. Therefore, the main issue to be considered by the Court is the domestic courts ' justification for the award they made in the applicant ' s case. In this regard we observe that the district and regional courts did not rely on any reasons justifying the amount of compensation awarded to the applicant. It is not apparent from the domestic judgments what issues the courts took into account, what domestic standards on compensation they used or what method of calculation they employed for determining the amount of compensation. The Government did not provide the Court with any evidence demonstrating the nature of the test applied by the domestic courts in assessing the applicant ' s claims and showing that it was based on Convention principles and coincided with the Court ' s own approach. There was also no explanation for the domestic courts ' refusal to examine the merits of the applicant ' s claim for compensation for health damage resulting from his ill-treatment. We are mindful of the fact that the lack of reasoning by the domestic courts may demonstrate the existence of a substantial degree of uncertainty and ambiguity as to the exact status, scope and content of the right to obtain redress for a violation of Article 3 guarantees and the manner in which this right operated in practice. In these circumstances we harbour doubts as to whether the applicant had an effective opportunity to make before the domestic courts his Convention points regarding his rights not to be subjected to ill-treatment and to obtain full reparation for it.

12. However, we are also prepared to draw even more far-reaching inferences from the domestic courts ' reluctance to provide grounds for their decision. Given the complete lack of reasoning behind the disproportionately low amount of compensation awarded to the applicant by the domestic courts, we strongly believe that the courts did not give due consideration to the applicant ' s claims and failed to act on the principle that the wrong should be adequately and effectively remedied. We are not convinced that the domestic courts in the present case, acting out of a genuine desire to be just and eminently reasonable, attempted to assess the effect which the instance of ill-treatment had had on the applicant ' s well-being (see, mutatis mutandis, Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II) and to determine the level of physical suffering, emotional distress, anxiety or other harmful effects sustained by the applicant (see Nardone v. Italy (dec.), no. 34368/02, 25 November 2004). Having regard to this finding and taking into account the fact that Article 13 gives direct expression to the States ' obligation to protect human rights first and foremost within their own legal system, establishing an additional guarantee for an individual in order to ensure that he or she effectively enjoys those rights (see Al-Nashif v. Bulgaria, no. 50963/99, § 132, 20 June 2002), we are therefore bound to conclude that the Russian authorities did not comply with their obligation to secure the applicant ' s right guaranteed by that Convention provision.

13. We would also like to address the argument pertaining to the unenforceability of the compensation award. In particular, the applicant submitted that Russian law did not allow him to foresee what the legal consequences might be should he bring an action against Mr N., a private tortfeasor, and be unable to obtain enforcement of the award. While accepting that he had had a choice of legal avenues to pursue in his attempt to obtain compensation for the ill-treatment suffered, the applicant stressed that there was no clear indication in Russian law as to what remedy could have provided him with a more tangible result or, if only an aggregate of remedies could have been effective in his case, what would have been the correct order in which to pursue them. In this respect the applicant ' s argument goes to the heart of the Convention principle that even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see Kudła, cited above, § 152, and T.P. and K.M., cited above, § 107). It must therefore be thoroughly examined.

14. We observe that, quite apart from the criminal proceedings to which the applicant was a civil party, another avenue was available to him by which to obtain compensation for the damage resulting from his ill treatment. The Russian Civil Code provided him with the right to seek compensation for damage from the State, by either bringing a tort action in parallel with the criminal investigation against Mr N., although not within the criminal proceedings themselves, or by bringing such an action after the criminal proceedings were completed (see paragraph 52 of the judgment).

15. As regards the first avenue, the Court has already had an opportunity to rule on the effectiveness of such a remedy in Russia, holding that in the absence of any finding of guilt by the domestic courts in criminal proceedings, a claim for damages, as well as any other remedy available to an applicant, has limited chances of success and can be considered as theoretical and illusory and not capable of affording redress to the applicant (see Chember v. Russia, no. 7188/03, § 71, 3 July 2008). The Government did not provide the Court with any evidence to show that in the circumstances of the present case an action against the State lodged prior to Mr N. ' s conviction could have been considered effective.

16. As to the second avenue we reiterate that, as is clear from the domestic courts ' interpretation of the provisions of the Russian Civil Code on State liability, by obtaining a judicial award against police officer N. the applicant lost the right to claim compensation from the State (see paragraph 25 of the judgment). Having found that this remedy was no longer open to the applicant after he had obtained the judgment award against Mr N., we do not need to proceed with the analysis any further. However, we do not lose sight of the Government ' s implied argument that the applicant was responsible for the legal choices he made, in so far as he could have introduced an action jointly against Mr N. and the State after the latter ' s conviction instead of opting to become a civil party to the criminal case.

17. In this respect we would like to emphasise two points. Firstly, we are not convinced that the provisions of the Russian Civil Code, in particular Articles 150, 151, 1069 and 1070, which the domestic courts cited in dismissing the applicant ' s action (see paragraph 24 of the judgment above), afforded the applicant sufficient safeguards to prevent a misunderstanding as to the procedures for making use of the available remedies and the restrictions stemming from the simultaneous use of them. In that connection we consider that neither the wording of those provisions nor their legislative history could have given the applicant any idea what legal inferences the domestic courts would draw from his legal choice to introduce an action against Mr N. first. In other words, they gave him no reason to think that his action against Mr N. might result in his being deprived of standing to bring proceedings against the State in order to obtain a higher sum in compensation than he had been already awarded against Mr N. We note that neither the Government nor the domestic courts relied on any legal provision making clear the type of liability (subsidiary, joint and several, and so on) which the State bore for the actions of its officials in circumstances similar to those under examination. In particular, the courts did not substantiate their position that the applicant did not have the right in law to bring a civil claim against the State subject to the condition that in the new proceedings the compensation already awarded to him would be taken into account in order to determine whether he had received full and adequate redress. Therefore, we consider that the applicant could reasonably believe that it was possible to pursue an action in the domestic courts to claim compensation from the State even after he had been awarded damages to be paid by Mr N.

18. Secondly, we do not lose sight of the fact that the criminal proceedings against Mr N. were pending for more than two years and that it took the domestic courts almost another year to consider his action against the State. In view of the applicant ' s situation at that time, he cannot be criticised for pursuing the avenue which met his most urgent needs, that is, a civil claim within the criminal proceedings against Mr N., since he was entitled to think that if he were to introduce an action against Mr N. and be dissatisfied with the outcome he would not be deprived of his right to bring proceedings against the State.

19. To sum up, it is our submission that the combination of the factors examined above demonstrates that the applicant had neither a single remedy nor an aggregate of remedies satisfying the requirements of Article 13. Consequently, there has been a violation of that Convention provision.

20. Finally, we submit that the damages awarded under Article 41 of the Convention for non-pecuniary damage are far too low. Because we believe that there has been a violation of Article 13 of the Convention, we logically voted against point 5 of the operative part of the judgment.

[1] In the majority of Russian cases (see cases cited in the paragraph) where a violation of Article 3 on account of inhuman treatment was found the Court’s award was approximately EUR 10,000-15,000.